Kubicek v. Slezak
| Decision Date | 03 April 1930 |
| Docket Number | 27080 |
| Citation | 230 N.W. 248,119 Neb. 542 |
| Parties | GOLDIE KUBICEK, APPELLANT, v. WILLIAM SLEZAK, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Fillmore county: ROBERT M PROUDFIT, JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
In an action for damages caused by an assault with intent to commit rape, an ordinary observer who was an eyewitness to the felonious act may testify to the appearance of plaintiff at the time as indicatin fear, and the exclusion of such testimony may be prejudicial error.
Appeal from District Court, Fillmore County; Proudfit, Judge.
Action by Goldie Kubicek, an infant, by Mike, also known as Matej Kubicek, her next friend, against William Slezak. Judgment of dismissal, and plaintiff appeals.
Reversed and remanded.
Bartos & Placek, for appellant.
Waring & Waring, contra.
HEARD before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY and DAY, JJ and MESSMORE, District Judge.
This is an action to recover damages in the sum of $ 50,000 for assault with intent to commit rape. The answer to the petition was a general denial. Upon a trial of the issues the jury rendered a verdict in favor of defendant. From a judgment dismissing the action plaintiff appealed.
One of the assignments of error challenges a ruling that prevented the mother of plaintiff from testifying to the appearance of plaintiff immediately after the assault as the former described it on the witness-stand.
At the time of the felonious assault pleaded in the petition, plaintiff was a female child about 9 years of age and defendant was a boy of 18. The father of plaintiff and the father of defendant were neighboring farmers and were jointly interested in threshing grain. They were thus engaged on the latter's farm July 14, 1927. On the morning of that day plaintiff and her mother were at the home of defendant's parents, where the mother and other women were cooking for threshers. Defendant was at work hauling wheat and scooping it into a granary a short distance from his father's house. While at the granary defendant called to some one at the house for a broom. Plaintiff carried it to him. Shortly afterward her mother left the house, emptied some tin cans into a spring wagon used for removing garbage, and before returning to the house went to the granary. She testified on the witness-stand to what followed, saying, among other things, she heard a cry, looked through a door in the granary, saw defendant in an attempt to commit rape upon plaintiff, and called defendant's mother and told her of the offense. Later, in the direct examination of plaintiff's mother as a witness, she was asked, referring to her little daughter immediately after the assault:
"How did she appear to you as you observed her as to being scared or otherwise?"
The trial court sustained an objection to the question as calling for a conclusion; "incompetent, irrelevant, and immaterial." Plaintiff excepted and offered to prove that, at the time, plaintiff appeared to be scared. A similar objection to the offer was sustained by the trial court.
The exclusion of this testimony is properly presented for review. Error in the rulings is obvious. The appearance of plaintiff immediately after the felonious assault to which the witness testified was material to plaintiff's case. That plaintiff appeared to be seized by fear as an instantaneous result of the violence described by the witness was evidence tending to prove both assault and resulting injury. Fear may be apparent on the face of an outraged female child. If it was reflected by distorted features, that fact was part of plaintiff's case. Shock produced by a revolting crime against sex may injure both mind and body. The fear of imminent ravishment may be far-reaching in its effect. It has been known to produce permanent insanity. The evidence rejected was the best obtainable under the circumstances. Generally such testimony comes from nonprofessional and nonexpert witnesses. The mother of plaintiff was competent to testify to facial appearance as well as to outcry. If she told the truth, she saw her infant daughter, when crying about to be violently ravished. Courts usually admit testimony like that...
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